Tyrone Electrical Services Pty Ltd T/A Tyrone Electrical Services
[2020] FWC 1081
•5 MARCH 2020
| [2020] FWC 1081 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Tyrone Electrical Services Pty Ltd T/A Tyrone Electrical Services
(AG2019/5102)
COMMISSIONER PLATT | ADELAIDE, 5 MARCH 2020 |
Application for approval of the Tyrone Electrical Services Pty Ltd, Adelaide, South Australia, Construction Department Single Enterprise Agreement 2019.
Background
[1] An application has been made for approval of an enterprise agreement known as the Tyrone Electrical Services Pty Ltd, Adelaide, South Australia, Construction Department Single Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tyrone Electrical Services Pty Ltd T/A Tyrone Electrical Services (the Applicant or Tyrone). The agreement is a single enterprise agreement.
[2] The matter was allocated to my Chambers on 16 January 2020.
[3] On 24 January 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement raised by both the Commission and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), who was a default bargaining representative, and invited the Applicant to address these matters including through the provision of an undertaking.
[4] On 10 February 2020, I conducted a telephone Hearing in relation to an F52 application seeking an order for production of documents made by the CEPU. I subsequently issued an order requiring the Applicant to produce the following documents:
• A confidential list of the persons who were proposed to be covered by the Agreement during the period in which the vote was undertaken, including the name of each employee, their job title, qualifications, Agreement classification, type of license held, type of employment (full-time, part-time, casual) and department they fall within.
• The Business Activity Statement (BAS) for the period in which the vote was conducted.
• Payslips for casual employees for the week(s) in which the vote was conducted.
• A confidential list of the names of employees who were provided with a ballot paper (by any means).
• A confidential list of the departments within the Applicant’s workplace and a description of their respective activities.
• A copy of the documents detailed in Paragraphs 1,3 and 5 (with the employee names redacted and the rates of pay in the payslips referred to in paragraph 3 redacted) was provided to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the bargaining representatives.
[5] A Hearing was conducted on 18 February 2020. Mr Earls represented the Applicant, with leave being granted pursuant to s.596 of the Act and Ms Rogers represented the CEPU.
[6] The CEPU provided a written outline of submissions. The Applicant produced the documents as ordered and also provided a written outline of submissions.
[7] Statements were provided by Mr Paul Scudds 1 (CEPU Organiser), Mr Christopher Carrol2 (Managing Director) and Mr Paul Andriske3 (Electrician), who participated in the negotiations but was not appointed as a bargaining representative. These persons also gave oral evidence.
[8] The CEPU’s position is that the Agreement is incapable of being approved as the Commission cannot be satisfied that:
• All relevant employees have genuinely agreed to the Agreement as required by s.186(2) and 188 of the Act.
• The Agreement passes the better off overall test in accordance with s.193 of the Act.
[9] The subject matter which gave rise to the CEPU’s concerns consisted of allegations of Tyrone failing to comply with good faith bargaining requirements, the voting process and the explanation of the terms, and effect of the terms, of the proposed agreement.
Alleged breach of good faith bargaining requirements
[10] This ground of opposition was put by the CEPU and withdrawn at the hearing.
Eligibility of persons who voted
[11] The Commission and the CEPU raised a concern that the Agreement had not been ‘genuinely agreed’ as some of the persons who voted for the Agreement did not fall within its scope and additionally that I needed to be satisfied that all of the casual employees who cast a vote were employed at the time.
[12] In order to determine this issue, I reviewed the information (including confidential information) provided by the Applicant and received evidence and submissions from the CEPU and Tyrone.
[13] Having reviewed the material provided, I am satisfied that:
• All of the employees covered by the proposed Agreement (other than the Apprentices) hold electrical qualifications and appear to be engaged in electrical work covered by the proposed Agreement.
• Whilst a few of those employees are described as project managers and design managers - they appear to perform work which falls within the scope of the proposed Agreement. I note that their pay rate is not significantly different to employees described as solely performing electrical work. Even if I was mistaken in this view, these persons (numerically) would not have influenced the outcome of the vote.
• I am satisfied that all of the casual persons who voted were employed at the time of the vote.
[14] I am not persuaded that the voting pool included persons who were not entitled to vote.
Explanation of terms and effect
Legislative requirements
[15] Sections 186 and 187 of the Act sets out when the Commission must approve an enterprise agreement. Should the Commission have concerns that an enterprise agreement does not meet the requirements in ss.186 and 187 of the Act, it is open to the Commission to accept a written undertaking. 4
[16] One of the requirements under s.186(2)(a) of the Act is that the Commission must be satisfied that the enterprise agreement has been genuinely agreed to by the employees covered by the enterprise agreement. Section 188 of the Act further defines when employees have genuinely agreed to an enterprise agreement. In particular it provides that in order for an enterprise agreement to be genuinely agreed to by employees covered by the agreement, the Commission must be satisfied that:
• the employer has complied with the pre-approval steps in subsections 180(2), (3) and (5);
• the employees have not been requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights has been given as provided for in subsection 181(2) of the Act;
• the enterprise agreement was made in accordance with subsections 182(1) or (2);
• there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
[17] The expression ‘all reasonable steps’ was considered by the Full Bench in The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd. 5 The Full Bench stated:
“[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales.39 The following propositions may be derived from the Court’s analysis:
• reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;
• the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and
• a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).
[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd40 the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:
“In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavours in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.”
[35] That proposition appears to us to be equally applicable to consideration of whether an obligation to take all reasonable steps has been complied with.”
[18] The Federal Court decision in Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd 6 dealt with, amongst other matters, the pre-approval requirement in s.180(5) of the Act. In particular, the Federal Court found that:
“[105] … satisfaction as to whether s 180(5) has been complied with involves an evaluative judgment, including because an assessment is to be made as to whether “reasonable steps” were taken by the employer.”
[19] The only evidence of compliance with s.180(5) of the Act, before the Federal Court, was contained in a statutory declaration. The Federal Court stated:
“[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–44 (Mason J). (our emphasis)
…
[115] The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.
[116] In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?
[117] As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW’s obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them…”
[20] In One Key, the Federal Court also discussed the meaning of the expression ‘genuinely agreed’ as follows:
“[141] Turning then to the language utilised in ss 186(2)(a) and 188(c), the word “genuinely” in the phrase “genuinely agreed”, indicates that mere agreement will not suffice and that consent of a higher quality is required. We reject OKW’s contention that the phrase is only directed at requiring an absence of fraud, coercion or duress in the process of employees providing their agreement. The word “agreed” on its own, suffices to achieve those ends. The word “genuinely” must be given some additional work to do. A court construing a statutory provision must strive to give meaning to every word of it: Project Blue Sky at [71]. The limits OKW seeks to put on para 188(c) are too narrow. The requirement for genuine agreement in the Fair Work Act prescribes some, but not all, factors that must be taken into account. In this respect, in contrast to its predecessor, s 170LT(6) of the Workplace Relations Act, paras 188(a) and (b) direct the Commission’s attention to a number of discrete matters. Paragraph 188(c), however, it is not at all prescriptive.
[142] Paragraph 188(c) is cast in very broad terms. It is intended to pick up anything not caught by paras (a) and (b). Thus, any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example is the provision of misleading information or an absence of full disclosure (see, for example, Re Toys “R” Us (Australia) Pty Limited Enterprise Flexibility Agreement 1994 (1995) 37 AILR 3-068 (Print L9066) (C No 23663 of 1994)). Another is the likelihood that the relevant employees understood the operation of the various awards that would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse, under the terms of the agreement. Thus, if we be wrong to conclude that the Commission is bound by s 180(5) to consider the content of the employer’s explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was “genuinely agreed to” having regard to s 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by para 188(c), but was a mandatory consideration.”
[21] In Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited 7 the Full Bench stated:
“[70] Section 180(5) of the Act is concerned with the taking of all reasonable steps to explain the terms of an agreement and the effect of those terms. How many steps and the content of those steps will necessarily depend on the circumstances. Some employers may, by reasons of the prevailing circumstances, need to take more or fewer steps than other employers with different agreements, facing different circumstances. The steps which may, in a given case, comprise “all reasonable steps” are to be assessed by reference to the circumstances of the particular case.
[71] Compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument, particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. The question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. Section 57 of the Act makes clear that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. In the present case, when the explanations were given, no enterprise agreement applied to the employees and the Award did apply. An explanation of the effect of the terms of the Agreement vis-à-visthe Award was therefore capable of being relevant to the evaluative assessment of whether all reasonable steps were taken to explain the terms of the Agreement and the effect of those terms.
[72] The obligation under s.180(5) to take all reasonable steps to explain to relevant employees the terms of an enterprise agreement and the effect of those terms is an important function of the agreement-making scheme established by Part 2-4 of the Act. Its evident purpose, taking into account its role in assessing whether the employees who were asked to vote to approve an agreement genuinely agreed to the agreement, is to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it. An employer’s discharge of its obligation under s.180(5) is intended to enable employees to know what they are being asked to agree to, and to understand how their wages and working conditions might be affected by voting in favour of an agreement.” (citations omitted)
[22] The Full Bench in Ditchfield also considered whether less beneficial terms of an agreement are required to be explained to employees, which includes a two-fold process; first an explanation of the terms and secondly an explanation as to the effect of the terms. The Full Bench found that whilst it is correct that there is no legislative requirement for an employer to raise any less beneficial terms of an agreement, whether there can be satisfaction that the employer has complied with s.180(5) of the Act will depend on the circumstances of the given case. The Full Bench concluded as follows:
“[73] The information available to the Deputy President from the combination of the Respondent’s statutory declaration and its subsequent submission is at best scant as to the content of the explanation it gave its employees. The sum of that information was as follows:
• the agreement was similar to an enterprise agreement which had previously applied to former mining operations undertaken by a parent company of the Respondent and which was well known to all of the employees (who had previously been employed under this agreement). All amendments to the previous agreement were clearly highlighted to make it easy for the employees to identify any changes. Employees were invited to discuss any concerns with management;
• a meeting was held on site on 17 April 2018, involving three members of management and all of the relevant employees during which the attendees went through the Agreement in detail, from front to back, discussing each of the terms of the Agreement;
• during that meeting, employees asked a range of questions about the Agreement, which were answered by management;
• a further meeting was held on 24 April 2018, with the same attendees, during which the Agreement was again discussed at length;
• throughout the bargaining/negotiation period and the access period, the Mine Manager was based full time on site and was available to discuss the Agreement with the relevant employees; and
• the agreement provided for wages that were significantly more generous than the Award.
…
[84] In the particular circumstances of this case, we consider that reasonable steps to explain the terms of the Agreement and the effect of those terms included an explanation of the less beneficial terms of the Agreement compared to the employees’ existing terms and conditions under the Award.
[85] As we have already observed, the evidence as to the content of the explanation given says nothing about what, if any, explanation was given to explain the effect of the terms of the Agreement to relevant employees. It follows that it was not open to the Deputy President to conclude that he was satisfied the Respondent took all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees. The Deputy President therefore erred in doing so. Accordingly, we uphold appeal ground 3.”
[23] In McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association 8 the Full Bench stated:
“[31] Thirdly there is no impediment in the Act to collaborate with bargaining representatives to provide relevant explanations. The Commissioner rejected certain explanations because they were given by the SDA. In some cases SDA documents were communicated by McDonald’s by electronic means. In our view the Commissioner was quite wrong to disregard these steps. In our view an employer would be taking reasonable steps to ensure terms are explained to employees if it collaborated with a bargaining representative to arrange for this to be undertaken.”
[24] The Applicant also referred me to the following additional authorities:
• Corestaff QLD Black Coal Mining Enterprise Agreement 2019 9
• Construction, Forestry, Maritime, Mining and Energy Union v Dawsons Maintenance Contractors Pty Ltd 10 - The Full Bench found that a number of matters where addressed by undertakings at first instance and that those matters were not the subject of any explanation to employees prior to the ballot. Accordingly, pre-approval requirements had not been met.
Evidence
[25] Mr Christopher Carrol (Managing Director) gave evidence as to the topic of the explanation of the Agreement which is summarised as follows:
• Tyrone was negotiating for a ‘rollover’ Agreement to replace the Tyrone Electrical Services Pty Ltd, Adelaide, South Australia, Construction Department Single Enterprise Agreement 2015. 11
• He did not explain the non-inclusion of the casual conversion clause.
• He did not remember discussing the inclement weather provisions as it was a carry over.
• There was a discussion concerning reductions to employer provided accommodation but he did not discuss shared accommodation.
• He did not advise casual employees they would not be entitled to income protection.
• The provisions concerning RDO’s were a carry over.
• On 4 October 2019 he emailed the bargaining committee and blind copied all employees a copy of the proposed agreement. 12 The proposed agreement was not submitted at the hearing.
• On 18 October 2019 he emailed the bargaining committee and blind copied all employees minutes of the bargaining meeting held on 16 October 2019. 13
• On 31 October 2019 he emailed the bargaining committee and blind copied all staff covered by the proposed agreement the information contained in attachments CC9, CC10 and CC11 of his Statement. CC9 appears to be minutes of the bargaining meeting prepared by Mr Scudds which occurred on 16 October 2019. It contains references to the position of the parties, notes that the proposed agreement is intended to be a ‘roll over’ agreement and suggested the use of the CEPU agreement as a reference point for negotiations going forward. CC10 appears to have included an embedded copy (Version 7.1) of the proposed agreement which appears above the email referred to in CC9 with additional comments. Some of the comments detail the effect of, presumedly, terms contained in the embedded document, others argue the parties respective positions. The embedded copy of the proposed agreement does not appear to have been provided to the Commission.
• CC11 appears to be minutes of a bargaining meeting held on 30 October 2019 written by Mr Carrol, together with another email with information about an income protection insurance proposal. At this meeting it appears that the agreement documentation had not yet been finalised.
• As at 18 November 2019 14 it appears that the proposed agreement provision concerning clause 28.3 (Penalty Rates), 29.2 (Expenses and Allowances), 34.4 (Inclement Weather) and Appendix C (Tool Kit) had not yet been resolved.
• On 20 November 2019 Mr Carrol advised the bargaining committee that he would put the agreement to a vote and that he would provide the final copy of the proposed agreement on 25 November 2019. 15 The draft agreement was not completed by that time.
[26] On 27 November 2019 Mr Carrol provided all employees with a copy, by email, of the proposed agreement, advice in relation to the conduct of the ballot, and an outline of the changes as compared to the previous agreement. 16
[27] A copy of the email and documents is reproduced below:
“All
Please find a copy below of our proposed EBA. I am asking you to vote for the agreement on 9 and 10 December 2019. This will be secret ballot. [sic]
Brent Wallis our store an will come to each site with a locked key box and will ask eligible Tyrone votes to place a yes or no in the ballot box, your name will be then ticked off from the eligible votes roll.
The box will be opened at 9am on the 11th December 2019 at Tyrone’s offices at 7 Dagleish street Thebarton. Brent Wallis and Paul Andriske will be witnesses for Tyrone employees. A representative from the union side is encouraged to attend as a witness.
The roll will be put together from permanent, casual and apprentice Tyrone staff eligible to vote on the 9 or 10 December 2019 [sic]
I’ve outline [sic] the changes with clause numbers for your easy review, if there is anything unclear please contact a member of the negotiating team listed above. (Amanda is listed for hard copy requirements)
I believe I’ve met most of the employees aspirations in this agreement
Briefly the 5 main points are:
1. Income protection. With JLT
2. Wage increase of 10% over 4 years.
3. Living away from home allowance increases.
4. Clarification of inclement weather.
5. Increase in fair allowances.
There is another 24 positive points that are all listed in the accommodating [sic] cover letter.
I want this thing done now (not drag on) so we can move on next year, so I am willing to pay the monetary increases from 15 December 2019 provided we have a positive vote.
More details are in the accompanying cover letter please read thoroughly before voting.
I encourage all eligible persons to vote as this is a good agreement that will hopefully enable Tyrone to win work for you the workers and secure employment for the life of the agreement.”
[28] Mr Carrol and Mr Joel Norman (who did not submit a statement or give evidence) held three meetings with employees on 21, 22 and 23 October 2019 where the enterprise agreement was discussed and he explained the terms of the Agreement and the proposed changes to the Agreement. Mr Carrol’s statement contended that employees raised the issues of inclement weather, income protection, 26 hour working week, PPE and base rates of pay. A copy of a meeting agenda was submitted but did not include the ‘EBA comparison spreadsheet.’ 17 Mr Carrol’s diary notes18 were non-specific as to the matters discussed.
[29] Mr Carrol contended that Mr Andriske reported to him that employees understood the changes proposed. In his oral testimony Mr Andriske said he could not advise if the employees he had engaged with understood the Agreement.
[30] Mr Carrol contended that his employees had to demonstrate competence in the English language to obtain an electrical license and provided copies of Safety Guide Questionnaires (redacted) undertaken by each of the seven employees who were described on the form F17 statutory declaration as having a non-English speaking background.
[31] With respect to the explanation to the four Apprentices engaged, Mr Carrol advised two of them had fathers who worked for Tyrone and their fathers advised they had discussed the Agreement with their sons and that they were satisfied that they understood the proposed Agreement.
[32] Mr Carrol was advised by another employee, Mr Skinner, that had had explained the Agreement to the other two Apprentices. Mr Carrol advised that Tyrone was not bound by the representations made by the fathers and other employees.
[33] Mr Carrol also gave evidence about the CEPU campaign for a ‘No’ vote.
[34] Mr Paul Andriske (Electrician) submitted a statement 19 and gave evidence. He could not recall any specific conversations about disadvantage. I noted that his oral testimony fell short of that contained within his statement.
[35] Mr Andriske advised that he and Mr Cormack held a toolbox meeting where the enterprise agreement was discussed. Mr Andriske submitted a copy of the Toolbox minutes which refers to an ‘EBA vote’ and a copy of a CEPU ‘Vote No flyer’ which raised issues about the RDO, travel allowance, living away from home and tool kit provisions of the proposed Agreement and the absence of provisions concerning income protection for casual employees, single self-contained accommodation, BIRST, project allowances, industry consistent wage rates and operative dates, drill battery allowance, options to work a 36 hour week, as contained in attachment PA4 to his statement.
Submissions
[36] The CEPU submitted that I could not be satisfied that the pre-approval step contained in subsection 180(5) of the Act which requires the employer to ‘take all reasonable steps’ to ensure that the terms of the enterprise agreement, and the effect of those terms, are explained to the relevant employees had not been met.
[37] Tyrone contended that it had met the requirements of s.180(5) of the Act.
[38] Tyrone drew my attention to the One Key decision and advised that context was important, which in this case included that the employees were experienced in the electrical contracting industry, this was a ‘roll over’ Agreement, employees were informed as to the progress of negotiations, the CEPU’s campaign meant the terms and conditions were at the forefront of employees minds, negotiations occurred over a substantial period of time and there was active, experienced industrial representation throughout.
[39] Tyrone contended that the ‘Agreement Highlight’ 20 document provided an explanation as to the effect of the proposed Agreement by reference to the existing arrangements, provided access to the relevant Award and a contact point for explanation.
[40] Tyrone also submitted that I could take into account the communications of the CEPU in determining whether the Agreement had appropriately been explained and relied on the decision in McDonald’s.
[41] Tyrone submitted that if they were in error, then I should exercise my powers under s.188(2) of the Act to find that the error was of a minor procedural or technical nature and that employees were unlikely to have been disadvantaged as they understood what they were voting for.
[42] Tyrone provided a document 21 which identified the changes between the proposed Agreement and the previous agreement after the hearing. I have received this document and used it to identify the changes made and compared them to the information provided to employees.
Consideration
[43] The responsibility for the explanation of the terms, and effect of the terms, of a proposed agreement largely falls on the Applicant. In McDonald’s the applicant was able to rely on representations made by the Union that was part of a collaborative effort. These facts in McDonald’s are distinguishable with the ‘No campaign’ ran by the CEPU in this case.
[44] In these circumstances, Tyrone is not able to rely upon the information proffered solely by the CEPU to explain the Agreement.
[45] Tyrone’s actions in so far as the reliance upon fathers and other employees (who did not have the capacity to bind Tyrone) representations is not a reasonable step to explain the terms, and effect of the terms, of the Agreement as required by s.180(5) of the Act.
[46] There is no reliable evidence before me as to the understanding of terms and effect of the Agreement from an employee’s point of view (other than Mr Andriske who gave competing accounts in his written and oral testimony).
[47] A review of the Agreement comparison 22 identifies the following provisions where explanation of the term and/or explanation of its effect appears to be deficient when compared to the information provided by Tyrone.
Clause | Term of the Agreement explained | Effect of term explained |
Clause 1.3 definition of Building work | Yes | No |
Deletion of Clause 17(a),(b)(c) from previous agreement | Insufficient detail | No |
Modification of Clause 17(c) of previous Agreement | No | No |
Extension of application of Clause 19.3 to apprentices and trainees | No | No |
Deletion of requirement for ‘single self-contained accommodation’ and ‘motel type’ accommodation in Clause 29.2.2 | No | No |
Changes to Clause 29.2.3 | No | No |
Expansion of Clauses 30.1, rostering in remote locations | No | No |
Insertion of Clause 30.4.1 | No | No |
Changes to hot or wet weather contained in Clause 34.2.3 | Insufficient detail | No |
Changes to Travel allowance at Clauses 33.4.2, 33.4.3 and 33.4.4 | Yes | No |
Changes to Clause 34.4.inclement weather | Insufficient detail | No |
Clause 41 (Income Protection) and impact on existing arrangements, particularly impact on casual employees who are excluded from the operation of that clause. | Yes | No comparison against existing arrangements, no advice that casual employees are excluded from the operation of the clause. |
Changes to tool kits contained in Appendix C | No | No |
[48] I find that Tyrone did not take all reasonable steps to ensure that the terms of the proposed Agreement, and effect of the terms, were explained to the relevant employees and that Tyrone has not met its obligation pursuant to s.180(5) of the Act.
[49] Whilst individually these omissions could be regarded as a minor technical or procedural error, when viewed collectively I do not believe it is appropriate to characterise them as a minor technical or procedural errors and I do not believe it would be an appropriate exercise of my discretion under s.188(2) of the Act.
[50] I find that the Agreement has not been genuinely agreed in accordance with s.186(2)(a) of the Act and accordingly the application must be dismissed.
[51] As a result of this finding I have not considered the better off overall matters and the undertakings provided.
COMMISSIONER
Appearances:
Mr T.Earls of counsel on behalf of the Applicant.
Ms J.Rogers on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
2020.
Adelaide:
February 18.
Printed by authority of the Commonwealth Government Printer
<PR717095>
1 Exhibit CEPU1
2 Exhibit A1
3 Exhibit A2
4 See s.190 of the Act
5 [2016] FWCFB 1926
6 [2018] FCAFC 77
7 [2019] FWCFB 4022
8 [2010] FWAFB 4602
9 [2019] FWC 8247
10 [2018] FWCFB 2992
11 AE417247
12 Exhibit A1, CC7
13 Exhibit A1, CC8
14 Refer Exhibit A1, CC12
15 Refer email sent at 6.34pm on 20 November 2019 as contained in Exhibit A1, CC14
16 Exhibit A1, CC15
17 Exhibit A1, CC17
18 Exhibit R1, CC18
19 Exhibit A1
20 Part of Exhibit A1, CC15
21 Exhibit A3
22 Exhibit A3
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7
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